UUDGMENT No. udu! sal 0S CATPRPCHWORDS ' ADMINISTRATIVE LAW - application for judicial review of decisions of magistrate made in course of preliminary hearing - \ revocation by magistrate of letter of request issued out of Perth Court of Petty Sessions to High Court in Hong Kong - direction by magistrate that documents obtained pursuant to letter of request be returned to Hong Kong - whether decisions of an "administrative character" - whether power in Court of Petty Sessions to issue letter of request - nature and purpose of letters of request - no statutory power - whether power to issue arises from inherent power of Court of Petty Sessions to regulate their own procedure - letters found to be nullities - obtaining of documents unauthorised - consideration of principles upon which discretion to exclude evidence illegally or improperly obtained should be exercised. Administrative Decisions (Judicial Review) Act 1977 Banking (Foreign Exchange) Regulations, regs. 40 and 41 Judiciary Act 1903, s.68 "7 Extradition (Commonwealth Countries) Act1966, 8.33 r Extradition (Foreign States) Act 1966, s.27 Justices Act 1902 (W.A.), 33. 42,43,53,68,69,102 Evidence Act 1906 (W.A.) Evidence Act Amendment Act 1914 (W.A.), ss. 2 and 4 Hong Kong Evidence Ordinances, ss. 75, 77B ! JAMES KENNETH PARSONS, IAN STEPHEN JAMES, PATRICK REDMOND McCARTHY (Applicants) -vV- IAN GEOFFREY MARTIN, IAN McKENZIE MURCHISON, PETER HUGH LLOYD, PETER D'ARCY CLARKE, DAVID JOHN GERMAIN, JOHN MICHAEL GILLON, ROBIN DAVID HUSTON, JOHN ARTHUR PRIDEAUX (REX) BOYDEN, and ROGER JAMES HUNTINGON (Respondents) W.A. G69 of 1984 SPENDER J. PERTH 24 AUGUST 1984 cy IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRA GENERAL DIVISI LIA DISTRICT REGISTRY ) W.A. G69 of 1984 ON ) BETWEEN: JAMES KENNETH PARSONS First Applicant IAN STEPHEN JAMES Second Applicant PATRICK REDMOND McCARTHY Third Applicant AND: IAN GEOFFREY MARTIN First Respondent IAN McKENZIE MURCHISON Second Respondent PETER HUGH LLOYD, PETER D'ARCY CLARKE, DAVID JOHN GERMAIN JOHN MICHABL GILLON Third Respondents ROBIN DAVID HUSTON Fourth Respondent JOHN ARTHUR PRIDEAUX (REX) BOYDEN, ROGER JAMES HUNTINGTON Pifth Respondents ORDER JUDGE MAKING ORDER: SPENDER J. DATE OF ORDER: WHERE MADE: 24 AUGUST 1984 PERTH THE COURT ORDERS THAT: 1. The documents obtained pursuant to letters of request issued to the High Court in Hong Kong and Supreme Court in Singapore be retained in the custody of the Perth Court of Petty Sessions and that, subject to all just objections and exceptions as to relevance and admissibility, the applicants be permitted to rely upon them in the proceedings against the third, fourth and fifth respondents. Subject to that order the application be dismissed. The applicants are ordered to pay the second respondent's costs, to be taxed, including reserved costs (if any). Otherwise no order as to costs. IN THE FEDERAL COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY ) GENERAL DIVISION ) BETWEEN : JAMES KENNETH PARSONS TAN STEPHEN JAMES PATRICK REDMOND McCARTHY AND: IAN GEOFFREY MARTIN IAN McKENZIE MURCHISON PETER HUGH LLOYD PETER D'ARCY CLARKE DAVID JOHN GERMAIN JOHN MICHAEL GILLON ROBIN DAVID HUSTON JOHN ARTHUR PRIDEAUX (REX) W.A. G69 of 1984 First Applicant Second Applicant Third Applicant First Respondent Second Respondent Third Respondents Fourth Respondent BOYDEN, ROGER JAMES HUNTINGTON SPENDER J. Fifth Respondents 24 AUGUST 1984 EXTEMPORE REASONS FOR JUDGMENT This is an application made under the Administrative Decisions (Judicial Review) Act 1977 ("the Act"). The first applicant is the complainant in certain complaints dated 27 July 1983, which were laid against each of the second, third and fourth respondents and which allege breaches of reg. 41 of the Banking (Foreign Exchange) Regulations ("the Regulations"). The second applicant is the complainant on certain further complaints dated 22 February 1984 laid against each of the second and third respondents alleging breaches of reg. 40 of the Regulations. The third applicant is the complainant on certain further complaints dated 1 March 1984 laid against the fourth and fifth respondents alleging breaches of reg. 40 of the Regulations. A preliminary hearing pursuant to the provisions of the Justices Act 1902 of Western Australia in relation to the complaints laid against the second respondent commenced on 16 July 1984 before the first respondent, Mr Martin, whois a Stipendiary Magistrate of the Perth Court of Petty Sessions. In all there were six complaints against Mr Murchison. Prior to the commencement of the preliminary hearing on 16 July 1984 involving him, three of the later complaints were withdrawn and the complaint laid against Mr Murchison which is dated 27 July 1983 was amended ina particular respect. On 27 July 1984, in the course of the preliminary hearing of the three remaining charges which charges had been laid by the first and second applicants against the second respondent, the learned Stipendiary Magistrate made various rulings. It is with respect to those rulings that this application is brought. The application is to review the decisions of the first respondent, by which decisions, made on 27 July 1982, the learned Stipendiary Magistrate: 7 (1) Revoked a letter of request dated 20 September 1983 and issued out of the Perth Court of Petty Sessions to the High Court in Hong Kong; (2) Directed that the documents obtained pursuant to the letter of request issued to the High Court in Hong Kong be returned to the Clerk of the Perth Court of Petty j Sessions to be retained by the Court until their return to the Court in Hong Kong; (3) Refused to allow the applicants to rely upon copies of certain documents obtained pursuant to the said letter of request; (4) Consequentially declined to permit certain evidence to be given by an officer of l the Hong Kong and Shanghai Banking Corporation; and (5) Stayed a letter of request dated 20 September 1983 and issued out of the Perth Court of Petty Sessions to the Supreme Court in Singapore. The applicants assert that they are aggrieved by those decisions because: "1. The Applicants have been unable to adduce proper evidence in the proceedings in which the decisions are made. 2. The Applicants will be unable to adduce proper evidence in proceedings against the Third Respondents listed for preliminary hearing in the Perth Court of Petty Sessions commencing 20th August 1984. 3. The Applicant will be umable to adduce proper evidence in the proceedings against the Fourth and Fifth Respondents listed for mention in the Perth Court of Petty Sessions on 2 November 1984." The applicants seek orders that each of the decisions of the first respondent be quashed or set aside, and that the documents obtained pursuant to the letters of request issued to the High Court in Hong Kong and the Supreme Court in Singapore be retained in the custody of the Perth Court of Petty Sessions and that, subject to all just objections and exceptions as to relevance and admissibility, the applicants be permitted to rely upon them in the proceedings against the second, third, fourth and fifth respondents. The preliminary hearing against Mr Murchison was adjourned for some short further evidence and final submissions, until next Monday, 28 August 1984, and an application before Mr Martin on 13 August 1984 to adjourn the preliminary hearing against the second respondent until the determination of this application was refused by him. In those circumstances, there was a degree of urgency to have this present application resolved, and in addition, a further application was lodged for an order reviewing the decision of Mr Martin declining to grant the adjournment of the further hearing of the preliminary hearing involving Mr Murchison. In those circumstances, notwithstanding the nature of the matters on which I have had the benefit of quite detailed argument, and the importance of the submissions canvassed, I am giving judgment and the reasons therefore without the opportunity for detailed consideration of them. The circumstances in which the decisions were made by the first respondent are as follows. On 26 July 1984 in the course of the hearing before Mr Martin, a Detective Senior Constable of Police, Ronald George Clark, was called to give evidence. He gave evidence that he arrived in Hong Kong on 20 October 1983 with a fellow police officer, Detective Sergeant Parsons, in the course of his duties for the Australian Federal Police while in Hong Kong, he attended before a Master of the Supreme Court of Hong Kong in Chambers. I take it that that is a reference to the High Court of Hong Kong. In the course of those attendances, certain documents were produced to the Court by various persons, one of whom was Michael John Uttley. On 27 October 1983, Mr Uttley attended at the Supreme Court in answer to a subpoena that had been issued. At that time he brought with him a briefcase containing documents. Those documents were organised into different coloured folders for different companies, with the names of the respective companies written on the folders. On that occasion, 27 October 1983, in the presence of a Mr Turner of the Special Prosecutor's Office, a Mr Wylie from the Attorney-General's Office in Hong Kong and the two Australian police officers, it wag discovered that Mr Uttley had further documents in his possession which were not included in the subpoena that had been directed to him by the Hong Kong court, so a further application was made to the Master to include those further documents. Mr Uttley allowed the police officers and the others to look at the documents and because of the volume of those documents Mr Uttley was asked by the police officers if he could photocopy the original documents twice. The idea behind that suggestion was that there would be one set made available to the Court and one set available for the police and the Special Prosecutor's Office. Mr Uttley, on the following day left the two photocopy sets with Me Wylie and they were collected from the Attorney-General's Office in Hong Kong by the two police officers. After telephone contact on 31 October, Mr Uttley onl November 1983 went to the suite of the Australian police officers at the Furama Hotel and there a comparison was made between the original documents and the copy documents. Schedules were prepared of those various documents. On the following day, the police officers again attended at the Hong Kong High Court and Mr Uttley produced to the Court a photocopy set of documents and agreed that he had checked the photocopy set against the original and found it to be correct. Mr Uttley retained the original documents and of the two photocopy sets that had been prepared, one get remained with the Hong Kong Court and the other set remained with the police and the Special Prosecutor's Office. nd When, in the hearing before Mr Martin, an application was made by Counsel appearing for the prosecution to have the various photocopy files, to which I have referred, marked for identification, objection was taken by Mr Heenan of Counsel who appeared for Mr Murchison in those proceedings. In the course of making his objection to those documents Mr Heenan said: "",.. In my respectful submission there is no basis whatever upon which these documents may be admitted and even if there were, there are powerful reasons for you to exclude them from reception in this case." He took objection to the absence, without apparent reason, of the original documents and to the fact that the documents were not directly transmitted to the Court of Petty Segsions in Perth. He said in relation to the latter matter that he was under the belief that the documents were transmitted to the Court of Petty Sessions by the Australian Foreign Affairs Department as a result of letters of request procedures which were carried out in Singapore and Hong Kong pursuant to letters of request which had been issued by another Perth magistrate, Mr Syddall, shortly after the commencement of the proceedings presided over by Mr Martin. Mr Heenan submitted that the grant of those letters of request, the investigation which was pursued in Hong Kong and Singapore pursuant to them, the retention of the documents which resulted from that judicial procedure by the Federal Prosecutor's Office and by the Federal Police instead of the immediate transmission of the documents to the Court as the letters of request prayed, constituted the very grossest abuse of the procedure of that Court. = When Mr Martin asked him why a resort to the letter of request procedure constituted an abuse of the process of the Court, Me Heenan said that there was no authority for the use of such procedure in criminal matters in Courts of Petty Sessions. There then followed before Mr Martin extensive submissions on behalf of Mr Murchison by Mr Heenan and by Mr Templeman of Counsel for the prosecution. In the course of those submissions there was supplied to Mr Martin a copy of a letter of request issued on 20 September 1983. That document which is before me as Exhibit G to Mr Philip Ronald Thompson's affidavit is headed: "IN THE MATTER of Complaints pending against ROBIN DAVID HUSTON and others for offences thereunder -and- IN THE MATTER of Applications for the issue of Letters of Request to the High Courts in the British Crown Colony of Hong Kong and The Republic of Singapore." The letter is addressed: "To the Competent Judicial Authority in the British Crown Colony of Hong Kong" and recites: "WHEREAS criminal proceedings have been instituted in the Court of Petty Sessions at East Perth in the State of Western Australia in which Robin David HUSTON, John Arthur Prideaux (Rex) BOYDEN, Roger James HUNTINGTON, Ian McKenzie MURCHISON, Craig Ian McGOWN, Peter Hugh LLOYD, Peter D'Arcy CLARKE, John Michael GILLON and David John GERMAIN are charged with breaches of the Banking (Foreign Exchange) Regulations. AND WHEREAS the criminal proceedings are not of a political character. AND WHEREAS it has been represented to this Court that it is necessary for the purposes of justice and for the due prosecution of the accused that the named persons and others, whose names are set out in the schedule hereto, should be ordered to produce documents and to be examined as witnesses upon oath touching such matters." It was prayed by Terence Syddall, a Stipendiary Magistrate, sitting in the Court of Petty Sessions at East Perth:- ",.. that for the reasons aforesaid and for the assistance of the said Court you will be pleased to summon the said witnesses to attend at such time and place as you shall appoint before you and that you will cause such witnesses to be examined viva voce touching the said matters in question. AND I further request that you will be pleased to cause the evidence of the said witnesses to be reduced into writing, and all books, letters, papers and documents produced upon such examination to be duly marked for identification, and that you will be further pleased to authenticate such examination by the seal of your tribunal or in such other way as is in accordance with your procedure, and to return the same together with a note of the charges and expenses payable in respect of the execution of this request through the Australian High Commission from whom the same was received for transmission to the Court of Petty Sessions at East Perth in the State of Western Australia. 10. AND I further request that you will cause me to be informed of the date and place where the examination is to take place." Attached to the letter of request was a document headed "Schedule to Letter of Request; Statement of Facts". In the first ten pages of that schedule, statements are made which cover an exhaustive series of commercial transactions including banking transactions involving telegraphic transfers and transfers of money from various companies into various company accounts and various personal accounts. The statement of facts, as it is called, asserts that there was in existence a fraudulent scheme centering around the activities of a company, Hamidan Pty Ltd, to have money channelled from Australia ostensibly for the purpose of oil exploration where, in fact, no such purpose was either intended or embarked upon. After the recital of various transactions and associated matters there is set out an extensive list of companies and their addresses. Inter alia, information was sought from the Registrar of Companies in Hong Kong and individual company records were sought in respect of that large number of companies; orders were asked for summonsing the former and existing shareholders, directors, secretaries and company solicitors and accountants of a list of named companies to produce their files and give viva voce or written testimony of instructions and directions given to them by persons named in that schedule. In addition, orders were sought summonsing specified persons to give specific evidence in relation to the signing of documents and/or the opening and operation of bank accounts in named companies. =r 1l. In the course of the submissions before Mr Martin there was also provided to him by counsel for the complainants a copy of the transcript of the argument that had occurred on 28 June 1984 before Mr Syddall, the Magistrate who had signed the document headed Letter of Request to which I have earlier referred, on the hearing of an application made to Mr Syddall seeking revocation of the letters of request. The basis for that application was that there was no proper legal basis upon which the letters of request could have been issued in the proceedings in the Court of Petty Sessions, which are criminal proceedings. It is common ground that in July 1983 an approach had been made to Mr Syddall in chambers by persons acting on behalf of the prosecution for the issue of letters of request. That application was made without any reference to Mr Murchison nor indeed to any of the persons named in the letters of request. After an initial letter of request had been signed, on 20 September 1983 an amended letter of request was signed by Mr Syddall and it was subsequent to that that the proceedings in the High Court of Hong Kong at which Detective Senior Constable Clarke gave evidence occurred iater in 1983. The transcript of argument before Mr Syddall on 28 June 1984 seeking revocation of those letters of request indicates that Mr Okeby, who appeared for Mr Murchison on that application, 12. submitted that there was no power for the prosecution in a criminal matter to have recourse to a letter of request procedure; that while it is possible in criminal cases to use a "letters of request" procedure when authorised by statute, in Western Australia there have been amendments made to the Evidence Act 1906 providing for such a procedure but those amendments to the Evidence Act 1906 have never been proclaimed. It was further submitted by Mr Okeby that the letters of request did not disclose that all the defendants named in the application had been separately charged and that the applicant in the matter before his Worship, Murchison, was not facing a common charge with the defendants Lloyd, Clarke, Gillon and Germaine. It was submitted that it was little more than a fishing expedition for evidence overseas and was not sought for the proper purpose for which a letter of request is issued, which is to take evidence from people who are outside the jurisdiction, who are unable or unwilling to come within the jurisdiction and whose evidence will be material to the proceedings. Mr Templeman, who appeared for the prosecution to resist that application, indicated that although the letters of request in terms required or requested the Courts of Hong Kong and Singapore to have witnesses brought before those Courts and examined and that documents be produced, and even though some oral testimony was taken, it was not sought by the prosecution to rely on that oral testimony or to adduce it in evidence in any way in the forthcoming proceedings involving Mr Murchison nor was it to be sought to be suggested that the documents which were ct 13. received in that way assumed any greater degree of admissibility than they would otherwise have had. It was asserted by Mr Templeman that they were "simply documents which are still subject to the ordinary rules of evidence if it is sought to tender them in the forthcoming proceedings". On the conclusion of that hearing, Mr Syddall found himself persuaded that he had power and had properly exercised that power to issue letters of request and he was not inclined to exercise any power of revocation. The material before me discloses that the application for letters of request was made ex parte. It is not precisely clear just what material wags placed before the issuing Magistrate, Mr Syddall. The material before me further establishes that' the respondents were not represented when evidence on oath was taken by the High Court in Hong Kong and documents were produced to that Court. Indeed, illuminating observations of the attitude of the prosecuting authorities to the letter of request procedure are to be found in a letter in evidence before me dated 18 October 1983 from an officer in the Office of the Special Prosecutor addressed to Counsel in Metbourne who was acting on Mr Murchison's behalf. That letter, inter alia, states: ",.. AS you are aware, the Australian Federal Police have been conducting investigations into the role played by your client on behalf of the promoters of the Hamidan scheme. The Federal Police concerned have formed the view, on the evidence presently available to them, that a prima facie case exists against 14. your client of having breached the provisions of Regulation 41 of the Banking (Foreign Exchange) Regulations. The Federal Police are in the course of obtaining evidence from overseas, and to this end, they have laida charge for a breach of Regulation 41 against your client, thereby enabling them to pursue a "Letter of Request" procedure. The charge has not been served, nor is it proposed that it will be served until such time as it has been concluded on all of the evidence gathered by the investigating police that a substantial offence or offences have been conmitted. In respect of the application made by Mr Heenan concerning the documents obtained by the "letters of request procedure", the Magistrate, Mr Martin, made certain observations and findings. He said: -. In my opinion there is no power presiding in this court or ina stipendiary magistrate to issue a letter of request in criminal. I have been referred the matter of practice of magistrates to issue letters of request, I did not say so when counsel spoke, but I will say now that I am very surprised to hear it. I know nothing of it. Again, this is another case in these proceedings where I have consulted with some of my senior brethren with the limited view only, I hasten to say, of discovering whether there is a practice. My two learned colleagues have never heard of such a practice; they have never heard of a stipendiary magistrate issuing a letter of request. I can only say that my two senior and learned colleagues were astounded to discover that a letter of request had been issued in criminal by one of our brothers." He said, dealing with the issue by Mr Syddall of the letters of request in 1983: id. "J... 1t seems to me that to seduce a busy stipendiary magistrate into exercising his office to accomplish an act beyond power is an abuse." And later, -»» It also seems to me to have produced an abuse of the Court of Hong Kong. There can be no doubt that that Supreme Court, the High Court of the Colony of Hong Kong, acted on the basis of implicit understanding that the learned stipendiary magistrate had the power to issue his letter of request." He referred to s.75 of the Hong Kong Evidence Ordinance which provides: "75. Where an application is made to the High Court for an order for evidence to be obtained in Hong Kong and the court is satisfied - (a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal ('the requesting court' ) exercising jurisdiction 1n a country or territory outside Hong Kong; and (b) that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated, the High Court shall have the powers conferred on it by this Part." 16. A later section, s.77B, provides essentially that the provisions of s.75 shall have effect in relation to the obtaining of evidence for the purpose of criminal proceedings provided that criminal proceedings have already been instituted. The learned stipendiary magistrate further addressed himself in these terms: ",..- One is now taken to a consideration of the consequences. The question is: May the secondary evidence be used? It is said for the prosecution that it does not rely on evidence taken before the Hong Kong court as evidence in these proceedings. I must disagree. The prosecution, in my opinion, relies on the letter of request and acts done in pursuance, including the issue of a subpoena in Hong Kong, to show proof of its secondary evidence." Later he said: ",.. lest what I have just said appears to lend support to the use of the letter of request procedure, let me disabuse my audience of any such notion. It was an abuse of power, aggravated if possible by lack of notice to the defendant. Therefore, he could not appear before the learned stipendiary to argue the merits of such procedure, in granting that any such were available. of course, a stipendiary has jurisdiction to hear the argument of a proposed defendant or respondent before any process issues and, therefore, the defendant could not appear before the court at Hong Kong to argue the merits there, nor had he the opportunity afforded to him, because of complete lack of notice of this procedure, to examine witnesses, to cross-examine them and see original documents and ask the person who produced them about them, where they came from." ~ 17. He asked himself: ",.. would it be justice to produce to this court documents obtained by improper methods and prevent the defendant from arguing the means, to prevent the defendant from examining the witness who produced the documents? Obviously not. The defendant is entitled to these aids. ..." Later, in his ruling, he said: "What should I do? There are several matters still to consider. There is my own inherent jurisdiction ... to strike out an irregular order. ..." After considering a Queensland case to which I will later come, Mr Martin said: "TI may therefore, I concede, strike out the letter of request. I propose to do so forthwith. It was irregular, most apparently so, and I shall do whatever acts are necessary to accomplish its demolition." After indicating that he did not propose to stay the proceedings or strike them out, Mr Martin considered the matter of evidence improperly obtained. He made a detailed reference to the case of R. v. Sang. The proceedings in the House of Lords are reported in £19803 A.C. 402, but Mr Martin drew particular ta 18. support in his approach from the judgments in the Court of Appeal in £19793 2 All E.R. 46. In particular Mr Martin drew attention to the observation in the headnote: "A judge at a criminal trial has no jurisdiction to exclude evidence tendered by the prosecution because it had been obtained illegally, unfairly, by trick or by other misrepresentation, except where the actions of the prosecution amounted to an abuse of the process of the court and were oppressive." In respect of that observation, he said: "That exception was not disapproved of by the Lords. In this case there has been an abuse of this court's process and I find in the circumstances I have outlined that that abuse has had an oppressive effect - oppressive to deny the defendant the chance to argue merits before a magistrate and before the High Court in Hong Kong, oppressive to deny the defendant any notice of the proceedings here and in Hong Kong, oppressive to deny the def endant the right to cross-examine witnesses abroad, oppressive to proceed irregularly and improperly without so much as a by-your-leave. I find it a striking abuse, and I say so with restraint, I hope properly. I shall not lend any support to it. I shall refuse to allow the prosecution to rely on this secondary evidence which they propose. These documents will not be suffered to be marked for identification in these proceedings. These documents will be bundled up and returned to the Clerk of Petty Sessions of this court forthwith and into the immediate custody of my court orderly. They are to be retained by this court until they can be returned at some future time to the court in Hong Kong." 19. He ended his ruling by saying: "Those are my reasons and my orders." I might add that by way of interlocutory relief before the hearing of this matter, Mr Justice Toohey on 10 August 1984 inter alia made the following order: "1. The decision of the First Respondent made 27th July 1984 for the return to the High Court in Hong Kong of the documents obtained pursuant to the Letters of Request issued to the High Court in Hong Kong on 20th September 1983 be suspended until the determination of this Application or until further order." Before I deal with the central questions in this application, I turn first to an objection that was taken to the jurisdiction of this Court to entertain the present application. It was submitted that a magistrate sitting ona preliminary hearing in respect of an indictable offence under a law of the Commonwealth is exercising a power under s.68 of the Judiciary Act 1903, (Commonwealth), as amended, and as such is exercising conferred judicial power of the Commonwealth. It was then asserted that, for that reason, the decisions made by the learned stipendiary magistrate which are here sought to be reviewed, are outside the purview of the Act. 20. It is clear that occasions where the judicial power of the Commonwealth is exercised are not capable of review under the Act; see Hamblin v. Duffy (1981) 34 A.L.R. 333 at p.339, and Burns v. Australian National University (1982) 40 A,L.R. 707 at p.714. Reference may also profitably be made to Baker v. Campbell £19833 57 A.L.J.R. 749. In Lamb v. Moss (1983) 49 A.L.R. 533 there was an express concession by Counsel for the appellant that the Magistrate in committal proceedings was exercising an administrative power; see at p.558 of that report. This point as to jurisdiction, while taken before me, was not pressed in any detail and was, ina sense, taken to preserve Mr Murchison's position should the matter go further. In the light of the observations by the Full Court of the Federal Court in Lamb v. Moss, supra, I am content to hold that I have jurisdiction under the Act in respect of these decisions. Next, before dealing with the central question of whether there is power in the Court of Petty Sessions to issue letters of request, there is a further subsidiary submission I should note. The letters of request issued in this case did not identify the criminal proceedings in respect of which aid was sought. The only criminal proceedings against Mr Murchison in existence at the time of the issue of the letters of request was the complaint of 27 July 1983. The proceedings on that complaint 21. were terminated by the discharge of the defendant by the learned stipendiary magistrate, Mr Martin, on 30 July 1984, the prosecution having indicated that it offered no further evidence on that complaint. It was submitted by Mr Heenan that the purpose of the letters of request insofar as they relate to the second respondent is by now spent. It is unnecessary in the light of my other conclusions to deal with this submission, but attention in that regard should be directed to the observations of the House of Lords in Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation (1978) 1 All E.R. 434. The view of the majority of the House of Lords, Lord Wilberforce, Lord Diplock, Lord Fraser of Tullybelton and Lord Keith of Kinkel (Viscount Dilhorne dissenting), is summarised at p.437: ",.. Having regard to the substance and terms of the letters rogatory, and to the spirit of the 1975 Act which was to enable judicial assistance to be given to foreign courts, the requests made in the letters should be treated as requests for 'evidence' for the purposes of 'civil proceedings' instituted by the requesting court, i.e. the Richmond court, within s.1(b) of the 1975 Act, and not as requests for pre-trial discovery in the nature of 'fishing' operations which, under the 1975 Act, would have been impermissible requests. Accordingly, insofar as it was possible to do so, the letters should be given effect both in respect of the documents requested (Lord Fraser of Tullybelton dissenting) and the oral evidence of the individual witnesses, and under s.2 of the 1975 Act it was possible to give effect to the letters by severely reducing the documents which were to be produced and disallowing the evidence of some of the named individuals. The fact that evidence obtained under the letters might be used in other proceedings, t.e. in the anti-trust 22. proceedings in Illinois, was not (Viscount Dilhorne concurring) a reason for refusing to grant the request under the letters since the Illinois proceedings were civil proceedings within 3.1(b) of the 1975 Act, and in any event once evidence had been given it was in the public domain." The central question in this application is whether there is power in the Court of Petty Sessions to issue letters of request. It is instructive to consider what is the nature and purpose of letters of request. The second edition of Jowitt''s Dictionary of English Law at p.1085 says: "The term 'letters of request' is now more generally applied to the 'request to examine witnesses in lieu of a commission,' which may be made under R.S.C., Ord. 70, to the courts of foreign countries or British colonies, in which are persons whose evidence is required in a proceeding in this country." In the same work in respect of commissions, one reads: "Commission ... signifies an authority given by the Crown, a court, or the like, toa person or persons to do some act, especially to inquire into certain facts." In the second Australian edition of Cross on Evidence at para. 10.4, the learned authors state: 23. "... The court or a judge may, in any cause or matter where it shall appear necessary for the purpose of justice, make any order for the examination upon oath before the court or judge or any officer of the court, or any other person, and at any place, of any witness or person, and may empower any party to any such cause or matter to give such deposition in evidence therein, or such terms, if any, as the court or a judge may direct. The order is usually made when the witness is ill or abroad or is likely to be abroad at the time of the hearing. A practising lawyer or an officer of the court is usually named as examiner. The witnesses, parties and advocates attend before him, the witnesses are examined, cross-examined and re-examined. The examiner takes a note of any objection to the admissibility of evidence that may be raised. The judge wiil only allow the deposition to be read at the hearing, without the consent of the party against whom it is given, if the maker is still unable to attend court. It appears to be settled law that where questions of identity or credibility are involved the courts will not readily permit the evidence of a Material witness to be taken on commission abroad." And at para. 10.5: "Letters of request May be issued to a foreign, dominion or colonial court asking one of their judges to take the evidence of a specific person within the jurisdiction of the court. They will not be issued so as to facilitate fishing expeditions: see Hardie Rubber Co Pty Ltd v. General Tire & Rubber Co, (1972) 46 A.L.J.R. 326, 462; Smith v. Smith (1975) 4A.L.R. 444 Rio Tinto Zinc Corp. v. Westinghouse Electric Corp. £19781 1 All E.R. 434. The depositions are remitted to the court and may be read at the trial." 24. In the light of those references it is appropriate to have regard to the terms of the lettersof request signed by Mr Syddall. They clearly contemplate the taking of evidence and the transmission of that evidence to the Court of Petty Sessions at Perth. No power to issue any process of letters of request is contained in the Justices Act 1902 (Western Australia), which is the statute that governs the procedures of the Courts of Petty Sessions in which the magistrates sit. For the applicants it was conceded that there was no statutory power to issue letters of request. Some provisions of the Justices Act 1902 may be looked at with benefit. In Part IV of the Justices Act which part deals with the general procedure before justices, s.42 provides that proceedings before justices shall be commenced by complaint; and s.43 provides that each complaint shall be for one matter only. Section 52 deals with the circumstances in which a justice may issue his summons. Section 68 of the Justices Act provides: "Every complainant shall be at liberty to conduct his case and to have the witnesses examined and cross-examined by his counsel or solicitor; and every defendant shall be admitted to make his full answer and defence to the charge, and to have the witnesses examined and cross-examined by his counsel or solicitor." Section 69 provides, inter alia: 25. "(1) Every witness shall be examined upon oath, or in such other manner as is prescribed or allowed by the Acts in force for the time being relating to giving evidence in Courts of Justice." Sub-section (2) of $.69 provides for the situation of a hand-up brief and, as an exception to the requirement that witnesses be examined on oath, allows statements in written form, in defined circumstances, to be admitted and dealt with as evidence. Section 102 in Part V of the Justices Act dealing with, amongst other things, the preliminary hearing in respect of persons who are charged with an indictable offence, provides, inter alia: "On a preliminary hearing, the Justices - (a) shall examine all the witnesses called by the prosecution, or called under paragraph (c) of subsection (2) of section seventy-three of this Act in respect of written statements tendered in evidence by the prosecution under section sixty-nine of this Act; and The Evidence Act Amendment Act of 1974 was assented to on 16 October 1974. That Act sought to amend in the Evidence Act of Western Australia by inserting ten sections dealing with the summary procedure for examination of witnesses other than ata hearing. One of the sections gave power to a West Australian 26. court to request a corresponding court in a prescribed country to take evidence for the use in a West Australian court. That section is s.110 and appears ins.4 of the 1974 Evidence Act Amendment Act. Section 2 of that Act provides that: "This Act shall come into operation on a day to be fixed by proclamation." No such date has been fixed by proclamation and so the statutory powers which were to be conferred on the Courts dealt with by that Act have not as yet been conferred. The applicants contend that the error into which the Magistrate fell was to confuse jurisdiction on the one hand with a court's power to regulate procedural matters on the other. It was asserted by the applicants that specific statutory authority was not necessary because the Court had an inherent power to regulate procedural matters and the issue of a letter of request such as was done in these circumstances was of a procedural nature. While it was conceded by the applicants that a Court of Petty Sessions in Western Australia had no inherent power to comply with a letter of request, it was submitted that this did not affect the inherent power of that court to ask another court for assistance. 27. I am not here concerned with the circumstances contemplated by 3.33 of the Extradition (Commonwealth Countries) Act of 1966 (Commonwealth) nor with the circumstance contemplated by s.27 of the Extradition (Foreign States) Act of 1966 (Commonwealth), where specific statutory power can be conferred on, for example, the Court of Petty Sessions in Perth by authorisation from the Attorney-General. While there was reference by the applicants to American and Canadian cases and articles, I do not find these of particular assistance. It is necessary to consider in this respect, however, two judgments of the Full Court of Western Australia and one judgment of the Chief Justice. In Walsh v. Giumelli £19751 W.A.R. 114, the Full Court was constituted by Jackson C.dJ., Burt J. (as he then was) and Jones J. and in the judgment of the Court at p.116, the Court said: "The general jurisdiction, powers and authority of magistrates or justices sitting in Petty Sessions in this State for the hearing and determination of complaints of simple offences is to be found in the Justices Act 1902-1972. Further powers and jurisdiction have been conferred by other statutes, notably the Criminal Code and the Police Act. But their jurisdiction is statutory, and they have no inherent jurisdiction such as is possessed by superior courts of unlimited jurisdiction." 28. Sir Edmund Burt in Smith v. Brown £19781 W.A.R. 157 at p. 159 said: --. In argument it was suggested that the Court of Petty Sessions could make such an order in the exercise of an inherent jurisdiction, but that is clearly an untenable proposition. The jurisdiction of courts of petty session is entirely statutory. They have no inherent jurisdiction: Walsh v. Giumelli (19753 W.A.R. 114 at 116, per Jackson C.J. If the power exists its source must be found within the statute law either expressly or by 'implication according to accepted standards of statutory construction and it would he inaccurate to describe it as 'inherent jurisdiction' which, as the name indicates, requires no authorizing provision': R. v. Forbes; ex parte Bevan (1972) 127 C.L.R. 1 at 7 per Menzies J." Finally in this regard, reference should be made to Sparks v. Bellotti £19811 W.A.R. 65 where the Full Court consisted of Lavan A.C.J.; Wickham and Wallace Jd. In the judgment of the Acting Chief Justice at p.67 reference is made to the observations by Burt C.J., in Smith v. Brown, supra, to which I have referred. He said of those statements: "These statements taken out of context might appear to support the view that Courts of Petty Sessions being creatures of statute the powers of magistrates and justices are limited strictly to the powers specifically conferred by the relevant statute. However, when regard is had to the subject under discussion in the two cited appeals it will be realized that in each case the court was dealing with a question of jurisdiction. If the matter under discussion in this appeal went to jurisdiction then indeed one is required to look at the Justices Act to see whether the power sought to be invoked was conferred thereby. But in this case the 29. court was not dealing with a matter of substantive law - it was dealing with a question of procedure and as Lord Widgery C.J. stated in R. v. Camberwell Justices; Ex parte Christie £19783 2 All E.R. 377; £1978] 2W.L.R. 794: 'In so far as the court is dealing with matters of practice it is permissible for the court to work out its practice in its own way and it is not necessary to find specific statutory authority for the doing of acts which are classified as part of the general practice." In Simms v. Moore (£19703 2 Q.B. 327, the court was dealing with an appeal against the conviction in a magistrate's court based on an allegation of procedural irregularity on the part of the presiding justices. At 331, Lord Parker C.J. stated: 'Justices have always had an inherent power to regulate the procedure in their courts in the interests of justice and a fair and expeditious trial. It is unnecessary to go through the history of the matter and I would only refer toa passage in the advice given by the Judicial Committee, per Lord Pearson in O'Toole v. Scott £1965] A.C. 939." In O'Toole v. Scott C1965] A.C. 939, Lord Pearson at p.959 said: "There is no statutory limitation of the discretion; the discretion is not conferred by statute, but is an element or consequence of the anherent right of a judge or magistrate to regulate the proceedings in his court. There is no reason in principle for limiting the discretion as suggested. It can be exercised either on general grounds common to many cases or on special grounds arising in a particular case. Its exercise should not be confined to cases where there isa strict necessity; it should be regarded as proper for a magistrate to exercise the discretion in order to secure or promote convenience and expedition and efficiency in the administration of justice." 30. It is clear that Courts of Petty Sessions have an inherent power to regulate their own procedure. I, for myself, cannot see how issuing a letter of request in the terms of the letter of request which was in fact sent to the High Court of Hong Kong, some of the terms of which I have already outlined, can be said to be regulating the procedure of the Court. It is to be noted that the validity of the letters of request is not in any way related to the attendance of any witness before the Court of Petty Sessions. Neither an Australian court nor a foreign court has the power to compel the attendance of any foreign witness before the Perth Court of Petty Sessions. It follows then, in my view, that the obtaining of the documents which were the subject of the submission before Mr Martin in the manner that was followed was unauthorised. It was unauthorised in two senses, in that, first there was no power to issue the letters of request and secondly, what was done was not that which the letters had requested; that is to say, the nature and purpose of the letters of request were, it seems to me, misconceived by the prosecution. The letters of request, in terms, requested the taking of evidence on oath and the production of documents. They requested the acquisition of evidence to be used (subject possibly to some qualifications) in the proceedings in the Court of Petty Sessions in Perth. The letters did not serve as international search warrants or as subpoenae to acquire the documents as physical objects, the 31. admissibility of which as evidence would then have to be proved in the ordinary way. This case throws up i1n = some graphic detail the difficulties with which prosecuting authorities are confronted in relation to the assembly of evidence in respect of offences which involve international transactions, frequently of a documentary sort, and the inadequacy of powers of acquisition of necessary evidentiary material concerning those transactions. Nonetheless the procedure that was followed 1n this case was not on any view of the matter in conformity with the terms of the letter and moreover, it seems clear to me from the material to which I have already referred that it was directed at the assembly of primary physical objects for which there was no proper basis or authorisation. On these matters amongst others being put before the Magistrate, Mr Martin, a discretion arose as to whether the documents so acquired ought to have been admitted in evidence. If documents are relevant or material to an issue in the hearing, they are admissible at law independently of how they were acquired. The applicable principles are canvassed in the second Australian edition of Cross on Evidence paras. 1238, 1242 and 1247, and it 18s unnecessary for me to repeat them. 32. The discretion which fell to the learned stipendiary magistrate was to be exercised judicially and on proper principles. Mr Martin made reference to, and it is clear placed great reliance on, the decision of the House of Lords in Rv. Sang, supra. Sang is clearly inconsistent with the principles which apply in Australia and, as such, should not be taken to be the law in Australia. Bunning v. Cross (1978) 141 C.L.R. 54; (1978) 19 A.L.R. 641 has further clarified the principles upon which the discretion to exclude evidence illegally or improperly obtained should be exercised. Ina joint judgment with which Barwick C.J. concurred, Stephen and Aickin JJ, analysed the implications of R. v. Ireland (1970) 126 C.L.R. 321. The learned authors in the 1980 supplement to Cross on Evidence say of Bunning v. Cross, supra: "ae The following propositions may be discerned from the judgment: (1) The discretion in question is one to be exercised where it is sought to admit evidence such as articles found by illegal searches, recordings of conversations, breathalyzer tests, fingerprint evidence and the like. It does not concern the reception of confessional evidence, in respect of which special rules apply: 19A.L.R. 659." CBut see now in this respect R v. Cleland (1982) 43 A.L.R. 619.9 "(2) In Kuruma v. R. £19553 A.C. 197 it was said that the only basis to exclude unlawfully obtained evidence was by the exercise of the general discretion of a judge in a criminal trial to exclude evidence which is 'unfair to the accused': Jeffrey v. Black £19783 1 All E.R. 555. This proposition is no longer good law in Australia: Wendo v. R. 33. (1963) 109 C.L.R 559; R. v. Ireland (1970) 126 C.L.R 321. As Lo the position in England see R. v. Sang C1980] A.C. 402. (3) In addition to his general discretion to exclude unfair evidence, the criminal trial judge has a special discretion founded on public policy to exclude evidence which was unlawfully obtained. This discretion is founded not on a principle of fairness to the accused, but upon: Society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired: (1977) 19 A.L.R. 659. (4) In the exercise of this special discretion on the facts of Bunning v. Cross, the following matters were material: whether the unlawful act was amistaken act or a reckless disregard of the law. In cases of illegality based on mistake, whether the nature of the illegality affects the cogency of the evidence. Whether the officer had deliberately cut corners in order to obtain conveniently evidence which he might lawfully have obtained with a little more trouble. The nature of the offence charged. The policy basis for the prohibition against the unlawful conduct of the officer." The principles in Bunning v. Cross, supra, have been applied in the case of unlawful wire-tapping: R v. Padman (1979) Tas R. 37, (1979) 25 A.L.R 36, where Crawford J. observed that the matters enumerated in Bunning v. Cross, supra, should not be treated as exhaustive, an observation with which I agree. Similarly, in Miller v. Miller (1978) 141 C.L.R. 269, (1978) 22 A.L.R. 119, there were observations by Gibbs J. (as he then was) to suggest that the discretion to exclude evidence unlawfully obtained ig available in civil proceedings. The principles in 34, Bunning v. Cross, supra, have been applied to exciude evidence where statutory procedures have not been followed, Shervill v. Shearer (1979) 26 A.L.R. 454, a Northern Territory case dealing with blood tests, and similarly in relation to breath tests, Griffiths v. Errington (1981) 7 N.T.R. 3. Nevertheless, the reported decisions generally indicate no great readiness by judges to exclude evidence even when illegality or impropriety is proved by the accused: see, for instance, ueen v. Tilev £19831 33 5.A.5.R. 344. It is, of course, easier to apply the exclusionary discretion where there is intentional improprietary or illegality, or reckless improprietary or illegality. Notwithstanding the Magistrate's reliance on Sang, the passages which I have set out above clearly indicate his attitude to this matter. It cannot be said that he was not alive toa discretion to exclude evidence on the public policy ground. Mr Martin after referring to Sang's Case expressed himself in unmistakeable terms as to his attitude to the public policy considerations of the discretion to exclude evidence improperly obtained. Further, when dealing with a submission that the conduct of the prosecution involved two aspects of particular significance: first, that the defendant was deprived of the opportunity to test the cogency of the evidence which had been improperly obtained, in particular cogency in the sense of the documentation produced being an accurate and complete record of the relevant documentation, and, secondly, that there were, in e 35. addition to the ordinary considerations between the parties in the circumstances of this particular case, matters affecting the standing, reputation, independence and public confidence in the court system. The Magistrate said: "I do not think it correct to look at this matter through the scope of the decision in Bunning v. Cross. To say that the witness is here as a result of an unconscious trick I think is to sidestep the fact that this court's process has been held to have been abused ..." Later: "It appears to me that the only right order is to forbid this witness" (a banking official from Hong Kong) "to give any further evidence about this matter and to uplift his witness summons and allow him freedom from this court's jurisdiction which was only submitted because of a belief as to the validity of orders made in Hong Kong. I consider the nature of his evidence. I do not think this a case where his evidence is so vitally important as to any issue, any essential issue, that sacrifices can or ought to be made to one principle by resort to another under the vague cover of letting it in in the interests of justice. Although I do not base my order upon what I shall next say, I will say, again with respect to ali those who think otherwise, that to remove the sanction of forbidding the evidence in fact removes the only real sanction for abuse of a court's process." It would not be a proper exercise of the discretionary jurisdiction of this Court under the Act to interfere with the exercise of a discretion, particularly in the area of the admissibility of a particular piece of evidence that arises 36. during the course of a preliminary hearing in relation to indictable offences, See Sankey v. Whitlam (1978) 142 C.L.R 1 per Gibbs A.C.J. at pp. 25 and 26; the judgment of the Full Court of the Federal Court in Lamb v. Moss, supra, at pp. 545 and 564; and Ciyne v. Scott and Anor (1983) 52 A.L.R. 405 per Beaumont J. However, the fact that a particular magistrate may exercise a discretion ina particular way is not to say that other magistrates must necessarily arrive at the same conclusion. In my view, therefore, no error has been demonstrated in the conclusion by Mr Martin that there was no power to justify the issue of the letters of request. How his discretion to exclude evidence that has been obtaincdi improperly in the sense that it was unauthorised is to be exercised, is a matter for him, and only in the most exceptional circumstances, of twhich this is not one, would such a discretion be reviewed by the Federal Court under the Act. Nonetheless, the Magistrate has purported to revoke the letter of request and direct the return of the documents obtained in Hong Kong by that procedure. As to the revocation of the letters of request, the Magistrate argued by analogy from the inherent power a court has to set aside irregular judgments. The Magistrate said in the course of his ruling: "There is my own inherent jurisdiction to strike out an irregular order." 37. He referred to Champion v. Fay £19833 2 Qd.R. 416. In that case the plaintiff issued what purported to be a special summons under the Magistrates Courts Rules (Queensland). The defendant did not file a notice of defence or counter-claim or enter an appearance. Judgment was entered in the plaintiff's favour in default. Out of time the appellant applied to set aside the judgment. Both the Magistrate and the District Court refused to set aside the judgment. The Full Court of Queensland held that ex debito justiciae the defendant was entitled to have that judgment set aside as being irregular, default proceedings requiring proof strictissimi juris. Mr Justice Connolly observed at p.417. -»» it should be unnecessary to emphasise that there is an inherent jurisdiction, not merely in this Court as a superior court but in all courts, to set aside irregular judgments, and that is a jurisdiction which belongs as much to the Magistrates Court as it does to any other court, ... " That case, however, deais with the question of setting aside irregular judgments. Judgments, until they are set aside, are valid. In this particular case, the letters of request were nullities and it is not correct, in my view, to argue by analogy that there is an inherent jurisdiction in the Magistrate's Court to revoke the "letters of request" in this case. Be that as it may, the question of revocation is in a sense academic in that the proceedings under the letters of request have been concluded and the documents have been remitted to the Court of Petty Sessions in Perth. oa] a ate 38. As to the direction by Mr Martin to return the documents, that direction was quite outside the conduct of the particular hearing on which he was presiding and really had nothing to do with the issue of whether a prima facie case had been established against Mr Murchison. It was assumed in argument from both sides of the Bar table here, that the documents, which were the subject of Mr Martin's decision, included documents that were or may be material to the forthcoming preliminary hearings against the third, fourth and fifth respondents. I am informed from the Bar table that Mr Martin will not be presiding over those preliminary hearings. The direction given by Mr Martin has the effect of pre-empting the exercise of a discretion by the presiding magistrate at those hearings to admit evidence in those proceedings. In my view, justice will be served by the documents remaining in the control of the Court of Petty Sessions in Perth with access to both prosecution and defence to determine their materiality. If use is sought to be made of any of them, the question of the admissibility can be argued; not only questions of admissibility based on the fact that they are copies and when, in those circumstances, they may properly be used under the secondary evidence rule, but, as well, questions of admissibility based on the exclusionary discretion on the ground of public policy. Submissions in those respects, as in others, can properly be canvassed in the appropriate place and at the appropriate time. — b 17-7, 39. Subject to that last matter, I am satisfied that no reviewable error by the first respondent has been demonstrated. What I propose gentlemen, is to order that the documents obtained pursuant to the letters of request issued to the High Court in Hong Kong and the Supreme Court in Singapore be retained in the custody of the Perth Court of Petty Sessions and that, subject to all just objection and exceptions as to relevance and admissibility, the applicants be permitted to rely upon them in the proceedings against the third, fourth and fifth respondents. Subject to that order the application be dismissed. The applicants are ordered to pay the second respondent's costs to be taxed and that apart from that, there be no order as to costs. loer. fy that t's and the 2¢ preceding Peo cut Catfe 12 -ea76ns for rou Sam 15° deseur - hat ls itr fet Assotiate Dated Ss Oa ber iy